Turkey: The Draft Penal Code Is A Cold Blow On Intellectual Property Protection

Turkish Ministry of Justice presented the Government the draft Penal Code to replace the existing criminal code adopted from the fascist Italian Penal Code known as the Zanardelli Code dated 1889. This draft has been prepared by the leading criminal academicians after (10) years of voluntary works over the weekends.

We understand from the press that the draft has been accepted and signed as a proposal to the parliament by all the ministers. Delay by one minister was publicly criticised by the others as it was causing delay to a work prepared after many years of efforts. We also understand that the President Demirel is also keen to get this proposal voted in the parliament as part of modernisation and democratisation a number of laws in the country.

The minister of justice who was also the minister to start the draft in 1987 refused to put the draft into discussion because he said the criticism would delay the new code for another 10 years which he did not want to allow. He also stated that the criticism at times was not constructive but destructive.

The draft is in the agenda of the Parliament and will go through various preliminary discussions before it gets to be discussed by the parliament after which it may become the new law if the President Demirel did not return it to the parliament for re discussions.

In the general justification of the draft it is said that the draft aims to create the national criminal code of the country and also putting all the amendments made in different disciplines and at time in panic circumstances in an orderly way. The draft also aims to improve the reforms brought into the Turkish Criminal system by the Law 647 regarding enforcement of the sentences. The law 647 is the main cause for the complaints among the legal practitioners. It is the law that allows for commutation of imprisonment to fine for TL 10.000 per day one year corresponding to (3) Dollars etc.

I have not come across a schedule of comparative penalties for different types of crimes therefore it is not easy to see which types of crimes or offences that the draft is giving importance and priority. What is mentioned is the difference between the crimes and offences and the three different levels of imprisonment. The death penalty is being aborted and replaced by "heavy life long imprisonment".

What matters for the IP right holders are the following provisions which should be taken into consideration and necessary attempts should be made to have them amended in a manner to be or to remain deterrent.

1. Article 57 of the Draft describes the imprisonment and light imprisonment up to and including (2) years as short term imprisonment.

2. Article 61 of the Draft states that unless otherwise stated in the Law imprisonment of up to (2) years are light imprisonment.

3. Per Article 62 of the Draft: depending on the conditions of the crime, the personality of the culprit, and other relevant conditions the court may convert the short term imprisonment into :
(i) a fine calculated by TL 1Million to 2 Million per day for crimes and by TL 500.000 to 1 million per day for offences,
(ii) a compensation or return obligation,
(iii) to continue to a training or education institution for up to (2) years,
(iv) to prohibit from a profession or from entering into certain areas
(v) to withdraw of any licence for upto (2) years
(vi) subject to consent of the accused to order them to work for a public work for a period not exceeding (6) months,

It is significant that this Article also states that the penalties will be the penalties after conversion per this article.

4. Article 81 of the Draft allows for postponement of the imprisonment of upto (2) years provided the culprit has not been sentenced to imprisonment for more than (3) months. Sentence to monetary penalties does not prevent the postponement. However the culprit shall be made subject to a controlled liberty.

I do not think that any IP infringers can be put in prison because of the article 62 and 81 as the former requires the imprisonment up to (2) years commuted to fine and consider the culprit sentenced to a fined rather than imprisonment as a result of the commutation and the article 81 allows for postponement of imprisonment for less than (2) years and the previous monetary penalties do not prevent such postponement.

I do not think the Controlled Liberty can be easily enforced in the country either.

5. The Article 85/5 states that the Light imprisonment for more than one month (up to (2) years ) shall be time barred within (2) years from its occurrence. This will make the period for the copyright infringement cases subject to a (2) years statutory limitations and time bar. This period may be extended for half of the normal period in the vent certain investigative steps are taken, such as interrogation of the accused, indictment etc.

For the statutory limitations the higher limits of the penalties shall be considered. As a result the Patent, trademark and design rights violations may enjoy 5 years statutory limitation per article 85/4 because they at times require imprisonment more than (2) years whereas the copy right infringement requires only (1) year maximum imprisonment. Accordingly either an exemption for the copyright provisions or higher penalties similar to patent/trademark provisions should be sought for.

6. Article (92) of the draft maintains the same principle regarding the complaints and in addition it provides that filing a complaint versus one of the accused shall stop the time bar for the others.

7. Article 94 provides for a pre-payment as existed in the existing law whereby the accused is entitled to strike out a criminal investigation for a crime that require a light imprisonment or an imprisonment not exceeding one year.

According to this provision the copyright infringers shall be free by making a pre-payment of TL 90 million (currently $400) for the minimum imprisonment required and the monetary penalties. (i.e. TL 300 Million corresponding to $1400 currently ) Accordingly a pirate may get rid off the criminal sanctions by paying a total of TL 390 Million. However these are subject to update every year to make up for the depreciation due to the inflation.

The confiscation of the machinery used in these crimes still exist.

8. The draft modifies the Computer Crimes Provisions of the Turkish Criminal Code which provided certain deterrent protection to the Computer Programs. The existing law provides imprisonment from a minimum of (1) years to (5) years against the illegal obtaining of the computer software or breaking the locks of programs and using the computer to obtain an illegal benefit.

Articles 347, 348 and 349 are now clearly refined to unauthorised access to the computer systems, altering or destroying records and data and causing to malfunctioning of the systems. I do not think it is at all possible to enjoy any protection for the computer software under these provisions if they are accepted as they are.

The content of this article is to provide only a general information on the subject. Legal advice should be sought for any specific circumstances.

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